Tharp v. Tharp

• Decision Date: 15 June 1948
• Court: West Virginia Supreme Court
• Parties: Elwilda Tharp v. Earl M. Tharp, et al.(CC737)

131 W.Va. 529

Elwilda Tharp

v.Earl M. Tharp, et al.

(CC737)

Supreme Court of Appeals of West Virginia.

Submitted April 6, 1948.

Decided June 15, 1948.

1. Wills-

One claiming an interest in an estate under the provisions of a will has the right in a proceeding under the Uniform Declaratory Judgments Act (Acts, West Virginia Legislature, 1941, Chapter 26) to have declared and determined what, if any interest, he has in testator's estate.

2. Wills

A will should be construed as vesting the estate devised or bequeathed at testator's death in the absence of language therein clearly indicating an intention on the part of testator to postpone vesting until a future event; and where the provisions of the will render doubtful whether testator intended the estate to be vested or contingent, the doubt will be resolved in favor of the vesting of the estate.

3. Wills

The rule in favor of the early vesting of estates should not be applied in the interpretation of a will so as to contravene the expressed intention of the testator.

4. Wills

A provision in a will whereby testator devises and bequeaths to his only son and widow, for and during the natural life of the widow "subject, however, to this, that at the decease or remarriage of * * * Lthe widow] the whole of said real estate and personal property shall pass to and become the absolute property of" the son "and his children", the son having only one child at testator's death, should be construed so as to vest in such child at testator's death a one-half interest in testator's estate, subject to the anterior estate in favor of testator's son and widow and subject to divestment pro tanto on admission of other children who may be born to the son after testator's death and before the death or remarriage of his widow.

5. Declaratory Judgment

A party invoking the provisions of the Uniform Declaratory Judgments Act (Acts, West Virginia Legislature, 1941, Chapter 26) cannot obtain relief other than the adjudication of his "right, status and other legal relations" in a declaratory judgment proceeding, except upon petition as provided by Section 8 of the Act.

Certified from Circuit Court, Hampshire County.

Action under Uniform Declaratory Judgments Act, Acts 1941, Chapter 26, by Elwilda Tharp against Earl M. Tharp and another, to have ascertained and declared plaintiff's right and interest, as heirs at law of her deceased son, Eugene Tharp, in the estate of her late father-in-law, W. L. Tharp, and for other relief. A demurrer to the bill of complaint was sustained by the Circuit Court, and it certified questions to the Supreme Court of Appeals.

Rulings affirmed in part; reversed in part; and cause remanded.

Lovins, Judge, dissenting. Ralph W. Haines and George H. Williams, for plaintiff. J. S. Zimmerman and G. K. Kump, for defendants.

Riley, President:

Elwilda Tharp filed her bill of complaint in the Circuit Court of Hampshire County under the Uniform Declaratory Judgments Act, Acts of the West Virginia Legislature, 1941, Chapter 26, to have ascertained and declared her right and interest, as the heir-at-law of her deceased son, Eugene Tharp, in the estate of her late father-in-law, W. L. Tharp. In addition the bill prayed for an assignment of alleged dower of the plaintiff through her estranged husband, Earl M. Tharp, who was the only child of W. L. Tharp and Ellen G. Tharp; payments out of W. L. Tharp's estate under a certain separation settlement made between plaintiff and her husband; the appointment of a receiver for W. L. Tharp's estate; and reference of the cause to a commissioner in chancery.

The bill alleges that W. L. Tharp died testate in November, 1927, survived by his widow, Ellen G. Tharp, his son, Earl M. Tharp, his daughter-in-law, Elwilda Tharp, and his grandson, Eugene Tharp. Testator's will, dated the 2nd day of February, 1927, nominated his son and his widow as executor and executrix, respectively, with power to sell the real estate, and devised all his real estate and personal property, in an appraised value of $42,044.41, consisting of farm lands, town property, livestock, farm equipment, stocks and bonds, and cash to his son, Earl M. Tharp, and his widow, Ellen G. Tharp, "for and during the natural life of said Ellen G. Tharp, subject, however, to this, that at the decease or remarriage of said Ellen G. Tharp, the whole of said real estate and personal property shall pass to and become the absolute property of said Earl M. Tharp and his children, and the remarriage of said Ellen G. Tharp shall ipso facto terminate her Executrixship". The quoted provision of the will is the basis upon which the plaintiff seeks to have her alleged interest in the estate of W. L. Tharp, deceased, determined.

The death of Eugene Tharp, only grandchild of W. Tharp, after the latter's demise but before the death or remarriage of Ellen G. Tharp, gives rise to the immediate question under consideration in this case. Plaintiff maintained in her bill, as she asserts here, that Eugene Tharp and his father, Earl M. Tharp took a joint vested remainder at testator's death in the latter's estate, preceded by the life estate in Ellen G. Tharp, and that upon the death of Eugene Tharp intestate, unmarried, and without issue, she and her husband under the laws of descent and distribution, as the surviving father and mother of said decedent, tpok a joint one-half vested remainder in their son's estate, her interest in testator's estate being an undivided one-fourth interest therein.

The defendants, Earl M. Tharp and Ellen G. Tharp, demurred to the bill of complaint on the main grounds that (1) the bill, seeking as it does, relief in addition to the declaratory judgment could not be maintained under the declaratory judgments act; and (2) that Eugene Tharp's interest in testator's estate was contingent, i. e., could not vest until either the death or remarriage of his grandmother, and Eugene, having died prior to the happening of either contingency, was never seized of any interest in his grandfather's estate, and, therefore, no part of such estate passed through him to plaintiff.

In sustaining the demurrer, the trial court held: (1) That plaintiff was entitled to a declaration and determination in this suit of her rights and interests, if any she has, in testator's estate, and that the demurrer should not be sustained on that ground; (2) that Eugene Tharp's only interest in testator's estate was contingent upon his surviving either the death or remarriage of his grandmother, Ellen G. Tharp, and having died prior to the happening of either of such contingencies, there was nothing to pass under the laws of descent and distribution to his mother and father as his heirs-at-law; and (3) that the prayer for relief has no proper place in this suit, the only justiciable questions involved being what, if any interest, Eugene Tharp took under the fifth paragraph of testator's will; and having sustained the demurrer certified the following questions:

" (1) Did the Court err in its rulings upon said demurrer or any of the several points thereof?

" (2) Did Eugene Tharp receive, under the will of W. L. Tharp, such estate or ownership in real estate or personal property as passed under the law upon his death intestate and unmarried to his mother, Elwilda Tharp, the plaintiff?

" (3) May the relief and all the relief prayed for in the bill be determined in this declaratory judgment proceeding?"

A preliminary question presented by the trial court's certificate is whether this suit may properly be maintained under the Uniform Declaratory Judgments Act (Acts, West Virginia Legislature, 1941, Chapter 26). In her bill of complaint, plaintiff asserts that she has a present and vested interest in the estate of William L. Tharp, deceased, and evidently, as it appears from the allegations of the bill of complaint, she is asserting this right for the purpose of conserving her interest in the estate and preventing dissipation thereof by the executor and executrix. From defendant's demurrer it is quite clear that defendant controverts plaintiff's asserted right. So this certificate presents a justiciable question which lends itself to solution in a declaratory judgment proceeding. Crank v. Mc- Laughlin, 125 W. Va. 126, 23 S. E. 2d 56. Section 2 of the Uniform Declaratory Judgments Act specifically provides: "Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder." Section 6 of the Act provides that the court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding. However, it is quite evident that this suit will remove the uncertainty involved here, and will serve to bring to a speedy termination the matters in controversy between plaintiff and defendant. If plaintiff has no interest in testator's estate, the controversy between the parties is terminated then and there. On the other hand, if she has, as she asserts in her bill of complaint, a vested interest as one of the heirs of her deceased son, a determination of this interest will open the way to her to protect by proper proceedings such interest as she has in testator's estate. So we think that the provisions of the Uniform Declaratory Judgments Act are fully met, and the trial court was entirely right in overruling this point of the demurrer.

In the appraisement of this case, as in every case which involves the question whether a remainder is vested or contingent, this Court is aided by the well-settled rule of construction of wills that all devises and...